¶1concurring specially.
¶2I concur in the setting aside of the death penalty on a 16-year-old for the additional reasons expressed in the concurring opinions of Hall, J., and this writer in Hawes v. State, 240 Ga. 327, 337, 340, 341 (240 SE2d 833) (1977). In my view, section 2 of Ga. L. 1963, p. 122, has not been repealed; it prohibits the imposition of the death penalty when the defendant has not reached his seventeenth birthday at the time of the commission of the offense. See Osborne v. Ridge View Associates, 238 Ga. 377, 379 (233 SE2d 342) (1977) (Hill, J., dissenting).
¶3Moreover, I concur in the setting aside of the death penalty in this case because, under Code Ann. § 27-2537 (c) (3), this court is to determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering not only the crime but also the defendant. We have had only one case since reenactment of our death penalty statute, Ga. L. 1973, p. 159, in which a defendant sentenced to death was under 17 at the time of commission of the crime, Hawes v. State, supra.
¶4Prior to Hawesafter 15-year-old Preston Cobb, Jr., was sentenced to death in 1961, Cobb v. State, 218 Ga. 10 (126 SE2d 231) (1962), the General Assembly prohibited execution of persons under 17. Ga. L. 1963, p. 122, supra.
¶5One basis for setting Hawes’ death penalty aside was that the jury was not *108instructed that it could consider mitigating circumstances (240 Ga. at 334). (This court was well aware that he was only 15 and that his age was a mitigating circumstance.) Because of this omission in the charge, I do not consider that Hawes v. State proves that jurors are willing to impose the penalty of death upon persons under 17.